Madras High Court
P.Subramani vs Bale Pandian @ Sellapandian on 11 March, 2021
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.R.P (NPD).No.4223 of 2018
and
Cmp.No.23189 of 2018
1.P.Subramani
2.G.Ramachandran ... Petitioners
Versus
T.M.Sampath (died)
1.Bale Pandian @ Sellapandian
2.Vedammal
3.T.S.Srinivasan
4.T.S.Balaji ... Respondents
[ R1 given up, R2 - Left]
Civil Revision Petition filed under Article 227 of the
Constitution of India, to direct the District Munsif Court, Thiruvotriyur to
number the unnumbered I.A.SR.No.R4915 of 2018 in I.A.No.1449 of 2017
in O.S.No.29 of 2000 on the file of the District Munsif Court,
Thiruvottiyur.
For Petitioners : Mr.Sudalaiyandi S.P
For Respondents : Mr.R.Jaganathan (for R3 & R4)
: R1 – Given up
: R2 - Left
ORDER
The Civil Revision Petition has been filed against the return of
the unnumbered I.A.SR.No.R4915 of 2018 in I.A.No.1449 of 2017 in
O.S.No.29 of 2000 on the file of the District Munsif Court, Thiruvottiyur.
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
The Court returned the unumbered I.A., by stating that it is not
maintainable for impleading the legal heirs of the deceased/first
respondents/plaintiffs.
2.The Court below returned the application on 24.10.2018, due
to the following reasons stating that:
1.Condone delay petition and abatement
petition not filed.
2.Impleaded proposed party name not mentioned.
3.Fresh docket sheet to be enclosed.
In this regard, the learned counsel for the petitioners has referred
a decision rendered by the Hon'ble Supreme Court of India, in the case of
K.Rudrappa vs. Shivappa reported in AIR 2004 SCC 4346, wherein it has
been held that there is no need to file petition for abatement and condone
delay in filing such application. Though he referred a reported judgment of
the Apex Court, in the present case, again the Court below returned the
application on 28.11.2018 by stating the following reasons:-
1.Previous direction not complied, and
2.Fresh docket sheet to be enclosed.
Challenging the above said reasons stated by the Court below
for returning the application, the present Civil Revision Petition is filed.
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
3.The sole contention of the petitioners is that they are the
defendants in the suit, they were set exparte and an exparte order was
passed against them on 15.12.2003. Therefore, they have filed an
application in I.A.No.1449 of 2017, to condone the delay of 2173 days in
filing the application to set aside the exparte order dated 15.12.2003 in
O.S.No.29 of 2000. Pending the above application, the
petitioners/defendants came to know about the death of the first
respondents/plaintiffs. Therefore, they filed an application to implead the
legal heirs of the deceased/first respondent but, the said application was
returned by stating the reasons that no condone delay and abatement
petition were filed. According to the plaintiffs, in view of the law laid
down by the Hon'ble Apex Court in the Judgment of the case in
K.Rudrappa vs. Shivappa reported in AIR 2004 SCC 4346, the order of
the court below is not correct. At this juncture, it is useful to extract the
relevant portion of paragraph No.10 of the above Judgment hereunder:-
“10. Having heard learned counsel for the
parties, in our opinion, the appeal deserves to be
allowed. The case of the appellant before the District
was that he was not aware of the pendency of the
appeal filed by his father against the order passed by
the Tehsildar. The father of the appellant died in June,
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
1994 and the appellant came to know about the
pendency of appeal somewhere in September, 1994
when he received a communication from the advocate
engaged by his father. Immediately, therefore, he
contacted the said advocate, informed him regarding
the death of his father and made an application. In
such circumstances, in our opinion, the learned
counsel for the appellant is right in submitting that a
hyper-technical view ought not to have been taken by
the District Court in rejecting the application inter alia
observing that no prayer for setting aside abatement of
appeal was made and there was also no prayer for
condonation of delay. In any case, when separate
applications were made, they ought to have been
allowed. In our opinion, such technical objections
should not come in doing full and complete justice
between the parties. In our considered opinion, the
High Court ought to have set aside the order passed by
the District Court and it ought to have granted the
prayer of the appellant for bringing them on record as
heirs and legal representatives of deceased
Hanumanthappa and by directing the District Court to
dispose of the appeal on its own merits. By not doing
so, even the High Court has also not acted according
to law.”
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
4.On perusal of the above said judgment, it is clear that the
objection on the basis of non filing of condone delay petition in filing the
petition to bring the legal heirs and petition to set aside the abatement are
technical objections and such objections should not come in the way of
doing full and complete justice to the parties. The said law laid down by
the Apex Court will apply to the present case as well.
5.Therefore, this Court direct the Court below to number the
unnumbered I.A.SR.No.R4915 of 2018 in I.A.No.1449 of 2017 in
O.S.No.29 of 2000 and dispose of the suit, within a period of three months
from the date of receipt of a copy of this order.
6.With the above observation and directions, the Civil Revision
Petition is allowed. No costs. Consequently, the connected miscellaneous
petition is closed.
11.03.2021
Index: Yes/No
Speaking Order/Non Speaking Order
klt
To
1.The District Munsif Court, Thiruvottiyur.
2.The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
KRISHNAN RAMASAMY, J.
klt
C.R.P (NPD).No.4223 of 2018
and
Cmp.No.23189 of 2018
11.03.2021
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
C.R.P.(NPD).No.4223 of 2018
and C.M.P.No.23189 of 2018
KRISHNAN RAMASAMY,J.,
Today, the matter is listed under the caption “For Being
Mentioned” at the instance of the learned counsel for the petitioners.
2.Though the Civil Revision Petition has been filed seeking
direction to number the unnumbered I.A.SR.No.R4915 of 2018 in
I.A.No.1449 of 2017 in O.S.No.29 of 2000 on the file of the District
Munsif Court, Thiruvottiyur, now, the learned counsel for the petitioners
brought to the notice of this Court that the jurisdiction of the Court has
been changed due to bifurcation and prayed to incorporate “ The District
Munsif Court, Madhavaram” in the place of “The District Munsif Court,
Thiruvottiyur” wherever it occurs in the order. The learned counsel also
brought to the notice of this Court that he has filed the original copy of the
returned I.A.SR.No.R4915 of 2018 before this Court and the same needs
to be returned.
https://www.mhc.tn.gov.in/judis/
C.R.P(PD).No.4223 of 2018, dt.11.03.2021
KRISHNAN RAMASAMY,J.,
rst
3.In the light of the submission made by the learned counsel for the
petitioners, Registry is directed to incorporate “The District Munsif Court,
Madhavaram” in the place of “The District Munsif Court, Thiruvottiyur”
wherever it occurs in the order and issue fresh order copy. The Registry is
also directed to return the original copy of I.A.SR. No.R4915 of 2018 to
the learned counsel for the petitioners.
29.09.2021
rst
C.R.P.(NPD).No.4223 of 2018
and C.M.P.No.23189 of 2018
https://www.mhc.tn.gov.in/judis/
